Doctrine, Politics, and the Limits of a Federal Right to Education

In this chapter, Eloise Pasachoff offers an array of arguments against a federal right to education. She argues that a federal constitutional right to education is both unnecessary and insufficient, regardless of whether that right is developed through constitutional amendment by Congress and the states or through constitutional interpretation by federal courts. She contends that it is unnecessary because the goals that advocates have for a constitutional right to education can already be accomplished through ordinary legislation using Congress’s powers under the Constitution’s Spending Clause. She argues that it is insufficient because having a constitutional right to education would not remove practical limits on Congress and federal courts in ensuring its implementation. While there is an argument that building a movement for a constitutional right to education would itself create change, Pasachoff highlights the downsides to that work, from breeding cynicism about government (if the constitutional right is declared but fails to achieve its goals in practice) to furthering destructive politics (if, as is more likely, the movement to achieve a constitutional right fails while creating conflict and reducing the possibility of finding common ground on smaller reform projects). She concludes that advocates instead should focus their energy on reforms that have a greater likelihood of success.